THE PEOPLE, Plaintiff and Respondent, v. ANTHONY LETRICE TOWNSEL, Defendant and Appellant.
No. S022998
Supreme Court of California
Apr. 21, 2016.
25
Michael J. Hersek, State Public Defender, and C. Delaine Renard, Deputy State Public Defender, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Sean M. McCoy, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WERDEGAR, J.—A jury convicted defendant Anthony Letrice Townsel of the first degree murders of Mauricio Martinez and Martha Diaz (
We reverse the conviction for dissuading a witness, vacate the witness-killing special-circumstance finding, and otherwise affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Guilt Phase
In September 1989, Martha Diaz and her son Andrew were staying in the home of her sister, Teresa Martinez, on Saunders Road in Madera. Also living there were Teresa‘s husband, Mauricio; their two children; and Mauricio‘s friend Luis Anzaldua. Mauricio‘s parents and siblings lived in the house next door. Diaz was six months pregnant with defendant‘s child.
On September 18, 1989, defendant came to Teresa‘s house and spoke with Diaz about the baby. The conversation was not amicable.
On the evening of September 21, 1989, defendant encountered Luidivina Hernandez, a mutual friend of his and Diaz‘s. He asked her if she had seen or spoken to Diaz, and whether Diaz had said anything about him. Hernandez acknowledged having seen Diaz and told him Diaz had said only that they were having problems. Defendant told her he wanted nothing further to do with Diaz or the baby, and that if he could not have her, neither could anyone else.
About 10:00 the following morning, defendant and a companion pulled up to Teresa‘s house in a brown car. Defendant got out, handed Teresa an envelope containing a letter, and angrily told her to tell Diaz she had better stay in the house. After he drove away, Teresa showed Diaz the envelope and letter, which was dated September 20, 1989, and addressed to defendant from the Madera Justice Court. It informed him that a criminal complaint charging him with a violation of
About 5:00 that evening, Teresa, Diaz, and their children, along with Luis Anzaldua, were sitting in front of Teresa‘s house. Mauricio‘s brother, Rene, was near an ice cream truck parked between Teresa‘s house and his residence. Defendant and a passenger pulled up in a gray Cadillac. From the car,
Three hours later, around 8:00 p.m., Teresa and her family, including Diaz, along with Rolando Martinez and Luis Anzaldua, were in her house when they heard gunshots outside. Rene and his sister Valerie, next door, also heard the gunshots. Rene and Valerie went to the window and saw defendant shooting a handgun in the air before getting into a gray Cadillac and driving away. After the shooting, family members collected shell casings from the street and gave them to Madera County Sheriff‘s Deputy Gerald Stephen Kirkland, telling him defendant was the shooter.
Still later that night, around 11:00 p.m., Rene, Rolando, and Anzaldua heard more gunshots outside their houses. Rene and Rolando saw shots being fired from the passenger window of a moving gray Cadillac. Rolando saw two figures in the car, which drove away at a high speed without stopping. Deputy Kirkland again responded to the family‘s call to the police, and collected more shell casings. Bullet holes were later seen in the garage door and a window of Teresa‘s house.
About 11:30 the next morning, Anzaldua, Diaz, and Andrew were driving in Anzaldua‘s car. Stopping at an intersection, they noticed two men standing near a gray Cadillac parked at a gas station. Frightened, Diaz said, “There he is.” Anzaldua understood her to be referring to defendant. One of the two men got into the driver‘s seat of the Cadillac.
Believing he was going to be chased, Anzaldua drove into town, going as fast as 70 miles per hour. The Cadillac followed, matching his speed. As Anzaldua neared the local sheriff‘s station, the Cadillac crashed into a fire hydrant. Anzaldua and Diaz got out of his car and tried to enter the station, only to find the front and back doors locked. Seeing a tall, dark-complected man wearing a white T-shirt and blue pants walking toward them, Anzaldua, who had worked in the station as a janitor, led Diaz to the basement. There they hid for about 10 minutes before going upstairs, where they told the deputy on duty what had happened. The deputy informed them a suspect was already in custody at the crash site. Anzaldua and Diaz went to the site and saw a Mexican male in custody. Anzaldua and Diaz then returned to their residence, and Anzaldua went to Rene‘s house next door to visit.
The same day, between about 12:30 and 12:45 p.m., Teresa and Diaz were in the living room of Teresa‘s home with their children and Mauricio was in the master bedroom. Anzaldua and Mauricio‘s siblings Rene, Valerie and Marybell were next door at Mauricio‘s parents’ home. A neighbor, David Sepulveda, saw a gray car, possibly an LTD or a Thunderbird, park next to
Inside the in-laws’ house, Rene, Valerie, Marybell and Anzaldua heard shots being fired. Sepulveda also heard the shots from inside his home and told his wife to call 911. Rene, Valerie and Marybell ran outside and met Teresa, who told them the shooter was defendant. All four took refuge in the in-laws’ house, but Teresa soon became concerned about her child, who was still in her house. She started to leave the in-laws’ house, but just then defendant left Teresa‘s house, firing his gun in the air, and approached the in-laws’ house. Rene retrieved his rifle and loaded it as Teresa called 911. He and Teresa went to the open garage door and saw defendant walk toward Raymond Thomas Street, which intersects Saunders Road, and fire into the gas tank of Anzaldua‘s car, parked in front of Teresa‘s house. Rene took aim and shot defendant in the back of the neck. Defendant fell and crawled some distance before collapsing.
Teresa and Rene ran back to her house and found Mauricio lying prone on the front porch. Inside the house, Rene found Diaz in the master bedroom with bullet holes in her face and neck, her son standing in front of her crying.
When Sergeant Bob Holmes of the Madera County Sheriff‘s Department arrived on the scene, defendant was lying supine on the ground, holding a nine-millimeter Taurus semiautomatic handgun with the hammer cocked and ready to fire. Sergeant Holmes kicked the gun out of his hand. Defendant identified himself and said he was the shooter. Madera County Sheriff Glenn Seymour arrived shortly after Sergeant Holmes and remained with defendant while Holmes investigated. Sheriff Seymour asked defendant what was going on. Defendant replied: “I did it. There‘s no one else to worry about.” David Sepulveda approached the sheriff and told him defendant was the shooter. Defendant told Sepulveda to shut up, adding, “or you will get it, too.”
Teresa Martinez approached defendant as he lay on the ground and asked, “Why my husband?” Defendant indicated he was not through yet and “Morris” was going to “come and finish you off.” As paramedics were attending to him, defendant said, “I was paid to do a job and I did it.”
Diaz had been shot five times, suffering wounds to the upper right thigh, right arm, left ear, nose, and the nape of the neck. The latter two wounds, which were fatal, fractured the base of her skull and caused a brain stem concussion. Her six-month fetus appeared normal and “died simply because he lost his life support, his mother.”
Criminalist John Hamman tested defendant‘s handgun and determined that its magazine could hold 15 rounds and the chamber an additional round, for a total of 16 rounds. Cartridge casings and bullets recovered from the crime scene were all definitely or probably fired by defendant‘s gun.
In an effort to show that defendant lacked the mental state required for the charged offenses, the defense presented the testimony of three psychologists who had evaluated defendant and concluded he is mildly to moderately intellectually disabled.1 (Their testimony is summarized below in the discussion of related claims.) In rebuttal, the prosecution presented the testimony of psychiatrist Lee Coleman, M.D., to the effect that IQ testing is not a reliable measure of intelligence, behavior is the best indicator of mental state, and mental health professionals have no greater ability than laypersons to tell who is malingering. (His testimony is discussed below in connection with related claims.) The prosecution also presented evidence that defendant was placed in special education classes in school because of a learning handicap, not because he was thought to be intellectually disabled; he functioned well in prior employment; and, while incarcerated, he regularly requested and appeared to read daily newspapers. The parties stipulated that defendant had a California driver‘s license.
1. Aggravating evidence
The prosecution presented evidence that defendant had engaged in violent conduct on multiple occasions before and after the murders. On August 31, 1989, Martha Diaz was babysitting at her friend Marcella Lopez‘s apartment. When Lopez returned home, defendant was outside the building and Lopez talked with him for a few minutes. Diaz emerged from the apartment to get something from her car, and the two women entered the apartment. A few minutes later, defendant knocked at the door and asked to speak with Diaz. Lopez told him Diaz did not want to talk to him and that he should leave. Instead, defendant pushed his way into the apartment and asked to speak with Diaz in private. She refused and they began to argue. Finally, Diaz told him to leave or she would call the police. Defendant became angry and told her not to call the police because he had a warrant for his arrest and would go to jail. Diaz said, “Well, then, just leave,” and picked up the phone. Defendant punched her twice with his fist on her mouth and head.
On the evening of May 31, 1990, Sergeant Rebecca Davis, a correctional officer with the Madera County Department of Corrections, entered the jail unit where defendant was sitting on a plastic chair in the open doorway of his cell. Twice Sergeant Davis told him to “lock down, go into his room and close the door,” and defendant failed to respond. The third time she gave the order, defendant threw his chair at her. She stepped aside to avoid the chair, and pushed him into his cell and locked it.
On June 28, 1990, Madera County Correctional Officer Frank Reiland entered defendant‘s cell to calm him down from an agitated state. Defendant tried to force his way past Officer Reiland and, when Reiland pushed back, defendant began to scream obscenities at him, kicked him, and grazed his temple with a punch.
Beatrice Cruz dated defendant in late 1985. On April 14, 1986, after they had stopped seeing each other, defendant appeared outside her home. A male friend who was visiting Cruz went outside and began arguing with defendant. Cruz told defendant that if he did not leave, she would call the police. He called her a bitch and hit her in the mouth. Cruz reported the incident to the police, and defendant was arrested. Sometime later, defendant phoned Cruz to say he was going to kill her “wetback,” referring to her male friend, and she had better get out of her house. Defendant pleaded guilty to a misdemeanor charge of battery arising out of the incident.
Defendant‘s mother, Catherine Townsel, testified defendant was one of five children in a close-knit, church-oriented family. As a child, defendant got along with his siblings and other children. The Townsels were the only Black family in the neighborhood, and the children socialized mainly with White and Mexican children. Defendant was immature when he started school and had difficulty reading and keeping up with the rest of his class even though Mr. and Mrs. Townsel worked with him. Mrs. Townsel agreed to the school personnel‘s suggestion that he be placed in special education classes. Clefo Townsel, defendant‘s grandfather, taught Sunday school and recalled that defendant could not keep up with the other children in the class. Defendant had no unusual behavior problems, but on one or two occasions, with his mother‘s permission, he was paddled at school for disobedience. When defendant reached junior high school, he began to do better as a result of the help he received in subjects he was slow in, and his mother did not recall any behavioral problems during that period. During high school, defendant dated Beatrice Cruz, who was older than he; Mrs. Townsel did not approve of the relationship. At 17, defendant was not doing well in school, and he eventually dropped out. He worked with his father doing manual labor, and at Sunkist and Boyle Electric. David Boyle testified defendant was always very cooperative and had no problems with the other employees. Defendant was mechanically inclined and could fix lawn mowers and cars.
Christine Ortiz and Elena Esparza testified that during the summer of 1988, they socialized with defendant, and found him to be a nice person with a sense of humor who did not drink or fight.
Bailiffs Jeffrey Doran and Jess Ozcoidi testified they had no difficulty with defendant while assigned to the courtroom.
Correctional Sergeant Allen Patchell testified that, following his review of Sergeant Davis‘s disciplinary report, he concluded defendant had not thrown the chair at Davis; rather, Patchell believed defendant slammed the chair toward the floor and it bounced toward Davis.
Dr. Frank Powell reviewed Dr. Coleman‘s testimony and testified it did not lead him to question the results of the IQ tests he had administered to defendant. Dr. Coleman‘s criticisms of psychological testing were not, according to Dr. Powell, widely accepted in the field of psychology.
A. Guilt Phase Issues
1. Failure to suspend proceedings and appoint director of regional center
On November 2, 1989, before the commencement of the preliminary hearing in justice court and nearly 15 months before the start of jury selection, defense counsel declared a doubt regarding defendant‘s competence to stand trial based on her interactions with him and on a psychologist‘s evaluation, which she did not further describe or tender to the court. The court suspended proceedings pursuant to
During the guilt phase of trial, on April 3, 1991, the defense presented the testimony of psychologist Dr. Lea Christensen that she had evaluated defendant in late October 1989 and found him then to be intellectually disabled and incompetent to stand trial. Although trial counsel never renewed her concerns regarding defendant‘s competence, defendant now contends Dr. Christensen‘s testimony constituted substantial evidence that he was both intellectually disabled and incompetent to stand trial, triggering a duty on the part of the trial court to suspend the proceedings and appoint the director of the regional center for the developmentally disabled to evaluate him pursuant to The governing legal principles are well established. ““A person cannot be tried or adjudged to punishment while mentally incompetent. ( In a competency trial, “[i]f it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally disabled ... to examine the defendant.” ( Defendant does not contend that the pretrial court erred in failing to initiate developmental disability competency proceedings. Rather, he contends Dr. Christensen‘s trial testimony—that in late October 1989, some 18 months earlier, she had concluded defendant was intellectually disabled and incompetent to stand trial—constituted substantial evidence of his present incompetence due to intellectual disability, triggering the trial court‘s statutory obligation to suspend proceedings, appoint the director of the regional center to evaluate defendant, and hold a second competency hearing. ( In support, defendant relies on People v. Castro (2000) 78 Cal.App.4th 1402 (Castro). In that case, the defense counsel declared a doubt as to the defendant‘s competence to stand trial and requested the appointment of the director of the regional center based on a psychologist‘s opinion that the defendant had a developmental disability classified as the “‘most severe.‘” (Id. at pp. 1410-1411.) The trial court refused to appoint As defendant recognizes, this court in Leonard, supra, 40 Cal.4th 1370, disapproved Castro, supra, 78 Cal.App.4th 1402, to the extent it employed a per se rule of reversal for error in the failure to appoint the director of the regional center in connection with competency proceedings involving an allegedly developmentally disabled defendant. (Leonard, supra, at p. 1389.) We reasoned that, although the complete failure to hold a competency hearing requires reversal of a conviction, the failure to appoint the director of the regional center is a less egregious error, requiring reversal only if it deprived the defendant of a fair competency trial. (Id. at p. 1391, fn. 3.) In Castro, we said, the failure to appoint the regional director did have such an effect because neither of the court-appointed psychiatrists made any ” ‘attempt to determine [the defendant‘s] intelligence level or assess the extent of her developmental disability.’ ” (Leonard, at p. 1390.) Instead, their examinations “focused on whether [the defendant] had any mental disease or mental illness, which is an entirely separate basis for a finding of incompetency than developmental disability. ( Here, defendant argues, as in Castro and unlike in Leonard, the record contains no evidence Drs. Terrell and Davis, the psychiatrists who evaluated We are unpersuaded that Dr. Christensen‘s testimony regarding defendant‘s alleged intellectual disability and her earlier belief that he was incompetent to stand trial raised a doubt sufficient to require the trial court to institute renewed proceedings under Dr. Christensen was one of a series of experts called by the defense at trial in an effort to undermine the prosecution‘s claim that defendant had the specific intent necessary for the charged crimes. On the subject of whether defendant was incompetent, Dr. Christensen described an evaluation that was not very different from the evaluation that Drs. Terrell and Davis had conducted. Like the psychiatrists, Dr. Christensen asked defendant general questions as well as questions about the legal process. Defendant answered most questions with “I don‘t know” or “I don‘t understand.” Similarly, to the psychiatrists he had said, among other things, he did not know his full name or his age, basic facts about his immediate family, the months of the year, what a high school was, what alcohol was, what medication was (although he later used the latter term correctly), or the sum of two plus two. One of the psychiatrists had noted that in contrast to these answers, the police report indicated that when defendant was read his Miranda rights, he responded by saying he understood those rights and that he wanted to talk to a lawyer. In addition, he was able to read to one of the psychiatrists an extended excerpt from the police report, and jail personnel reported to the psychiatrist that Dr. Christensen came to a different conclusion: that defendant truly did not understand the nature of legal proceedings. She affirmed this conclusion in spite of evidence, introduced on cross-examination during her testimony, tending to show that defendant did understand the basics of the legal process—in particular, a letter he wrote discussing the sentence he might receive and considering whether or not to testify. When asked to explain why she came to a different conclusion from the examining psychiatrists, she responded simply that she had conducted psychological testing, whereas Drs. Terrell and Davis had not. The results of Dr. Christensen‘s testing, however, are subject to substantial question in light of the remainder of her testimony. Her testing of defendant yielded a full-scale IQ score of 47, which she testified indicated moderate to severe intellectual disability. She further testified to significant intellectual deficits beyond those revealed in response to her questions about defendant‘s understanding of the legal system. For example, she testified that defendant was unable to calculate “two minus one.” Dr. Christensen also asserted that defendant had exceptionally poor memory. But despite her own admission that defendant‘s unusually weak memory was not typical of people who are intellectually disabled, Dr. Christensen denied that his responses suggested malingering. Her explanation did not, however, describe in any detail how her specialized training and expertise enabled her to rule out the possibility that defendant was malingering. She explained only that, in her view, “[m]alingerers wouldn‘t conceive of, would not normally think about using [lack of memory] as a technique for faking one out.... A malingerer will think of something different.” As Dr. Christensen acknowledged at trial, her finding that defendant was moderately to severely intellectually disabled was an outlier. The two other defense experts, also both licensed psychologists, testified that they had tested defendant‘s full-scale IQ as 59 and 66, respectively—within the range of mild, not moderate or severe, intellectual disability. Dr. Christensen acknowledged that the difference between a full-scale IQ of 47 and one of 66 is “significant.” She hypothesized that the different results might have been attributable to various factors present on the day she examined defendant, including that the evaluation was conducted in an infirmary setting with many distractions and poor lighting, and that defendant was at the time in a head harness, medicated, tired, and in pain while recovering from injury. Defense expert Dr. Schuyler (who had tested defendant‘s full-scale IQ as 66) echoed these concerns about the effects of this set of unusual conditions on the results of Dr. Christensen‘s evaluation. In sum, given the confounding factors operative at the time of Dr. Christensen‘s evaluation—including that defendant, still recovering from a gunshot wound, was immobilized in a head harness, in pain, and on medication, and that the testing was taking place in a hospital environment that was apparently poorly lit and full of distractions—the trial court could properly find she lacked ” ‘sufficient opportunity to examine” defendant for her opinion to raise a reasonable doubt as to his competency. (People v. Ramos (2004) 34 Cal.4th 494, 507-508, quoting People v. Pennington, supra, 66 Cal.2d at p. 519.) The trial court therefore did not err in failing to institute competency proceedings under People v. Hale (1988) 44 Cal.3d 531, on which defendant relies, is inapposite. There, the trial court declared a doubt regarding the defendant‘s competence and ordered him evaluated under
People v. Melissakis (1976) 56 Cal.App.3d 52, on which defendant also relies, is likewise distinguishable. In that case, the Court of Appeal reversed a conviction where, after pretrial competency proceedings had eventuated in a finding that the defendant was competent, the trial court failed to hold a second competency hearing after new evidence emerged at trial that the defendant was in the grip of paranoid delusions that prevented him from cooperating with his counsel in the presentation of a
Our conclusion that the trial court did not err in failing to reinstitute competency proceedings based on Dr. Christensen‘s testimony obviates the need to address defendant‘s contention that to hold reliable retrospective competency proceedings to remedy that purported error would not be possible.2
2. Issues related to testimony of Lee Coleman, M.D.
In support of his defense that he did not premeditate and deliberate the killings, as required for first degree murder, or kill Diaz with the specific intent to prevent her from testifying against him in a possible future criminal proceeding arising from her spousal battery complaint, as required for the witness-killing special-circumstance allegation and the dissuading a witness charge (
a. Factual background
Resolution of defendant‘s claims requires that we set forth the defense objections and the witness‘s testimony in some detail. As noted, the defense presented the testimony of three psychologists who evaluated defendant at different times: Dr. Lea Christensen, Dr. Frank Powell, and Dr. Bradley Schuyler. The witnesses administered various tests, including the Wechsler Adult Intelligence Scale Revised, the Bender Motor Gestalt test, a street survival skills questionnaire, the Wide Range Achievement Test, subtests of the Woodcock-Johnson Psychoeducational Test Battery, the Trail Making Test, the Gilmore oral reading test, the Denman memory tests, and the Wechsler Memory Scale Revised. Based on their testing and evaluation, the witnesses concluded defendant was mildly or moderately intellectually disabled and not malingering. Drs. Christensen and Powell testified generally that intellectual disability affects abstract thinking, memory, ability to understand, and judgment, but neither expert rendered an opinion as to whether defendant was capable of forming, or did form, the mental states required for the charged offenses or the special circumstance allegation. Dr. Christensen testified that while an intellectually disabled person can form the intent to kill, he or she would have greater difficulty making decisions, considering the consequences of his or her actions, and drawing causal connections, and would be more impeded in his or her judgment, than would a person of normal intellect.
After the prosecutor indicated he would be presenting the testimony of Dr. Lee Coleman in rebuttal, the defense, out of the jury‘s presence, requested an offer of proof regarding Dr. Coleman‘s proposed testimony. Defense counsel noted: “[W]e restricted our questioning of the experts to not have them render legal conclusions or opinions as to the state of mind of the defendant. [] We do not believe that the proposed testimony of Dr. Coleman is appropriate as rebuttal.” Defense counsel also argued the proposed testimony was irrelevant. Based on his study of the witness‘s published writings, counsel stated it appeared Dr. Coleman would be testifying that psychiatrists and psychologists have no training that would enable them to render opinions in the courtroom. Counsel argued that “since [psychological experts] have, in fact, been qualified as experts and allowed to present their expert testimony, that Dr. Coleman coming in and saying that has absolutely no place within the courtroom setting and should be totally disregarded by the jury” would be “an inappropriate opinion,” as well as “extremely prejudicial and its probative value is certainly outweighed by its prejudice ....”
In the jury‘s presence, Dr. Coleman testified as follows: He had been a medical doctor specializing in psychiatry since 1969. Psychiatrists are medical doctors specializing in problems of emotions and behavior. Psychologists are not medical doctors, and cannot treat the body or prescribe medications, but their training in psychotherapy overlaps that of psychiatrists. Since the early 1970‘s, Dr. Coleman‘s special interest had been in psychiatry in the legal system. He had studied the professional literature concerning how the techniques, methods, and examinations used in clinical psychiatry and psychology work when applied in the legal setting, and had read actual case files to compare the methods and conclusions used by mental health professionals with “what we know in the professional literature of the actual ability of those techniques to do what is alleged that they can do.” Based on his study and experience, Dr. Coleman held the opinion that the tests and procedures mental health professionals use “are not reliable instruments to help answer the questions which they‘re supposed to be helping with.” Over an unsuccessful lack-of-foundation objection by the defense, Dr. Coleman testified an IQ test is not a reliable measure of intelligence, a mental status examination is not a reliable guide to “what a person‘s orientation or understanding or current mental state is,” and a personality test is “not a reliable guide to somebody‘s personality.” The examiner engages in “guesswork as to the reason why the person answers the way they do.”
The prosecutor asked whether Dr. Coleman had an opinion as to whether the results of such tests have any value to a jury. Over unsuccessful defense objections on grounds of improper rebuttal, “not proper subject for expert testimony,” and “calls for a conclusion with a lack of foundation,” the witness testified the tests “are of no help whatsoever“; “[t]here is no kind of personality which is incapable of having [the mental states at issue in a criminal case]“; and the tests were never designed for this purpose. No
On cross-examination, Dr. Coleman acknowledged his belief that no mental health professional can determine from testing what a person was thinking at some time in the past. Asked whether a fact finder “should decide a case solely on the facts surrounding the circumstances of the offense,” Dr. Coleman stated: “[I]f they‘re going to decide what the truth is about what happened, of course, they would rely on all the evidence. But when it comes to these mental questions, that, in my opinion, a person‘s behavior as a juror determines it to be from the evidence and of the circumstances surrounding the behavior as they determine it to be is as reliable a guide as exists to determine what somebody‘s mental state was.” Dr. Coleman emphasized he was not saying that a person‘s mental state during the commission of an offense was irrelevant; rather, he said, “My point is simply that the tools of psychiatry and psychology are in my opinion of no help in a jury or judge deciding those mental issues.”
b. Asserted error in finding Dr. Coleman qualified to testify as an expert on intellectual disability and related intelligence and psychological testing
In any event, as the Attorney General argues, Dr. Coleman did not testify as an expert in intellectual disability, and rendered no opinion regarding whether defendant is intellectually disabled. Rather, Dr. Coleman testified, based on the professional literature and his own study, about psychological evaluation generally—including intelligence, neuropsychological, and personality testing—and its limitations in terms of the inferences it can support in the forensic setting concerning a defendant‘s mental state at the time of an offense.3 Defendant fails to show the trial court abused its discretion in permitting this testimony in rebuttal to that of the defense experts. His derivative constitutional claims fail for the same reason.
Defendant also contends that, in testifying that intelligence testing is not generally accepted within the professional community as a fundamentally reliable measure of intelligence, Dr. Coleman revealed a lack of impartiality
Preliminarily, defendant forfeited this challenge to Dr. Coleman‘s impartiality by failing to raise it in the trial court. On the merits, the argument is unpersuasive. Defendant predicates his claim on a statement by Dr. Coleman taken out of context. In testifying, “that‘s why these [IQ] tests have been totally trashed by the professional community” and “not given any credibility by the professionals,” Dr. Coleman was addressing the observed tendency, noted even by defendant‘s experts, of persons with lesser educational levels and language skills, who mainly come from minority groups or from an impoverished background, to score lower on IQ tests, apparently for reasons unrelated to actual intelligence, than persons from the dominant community. We perceive no lack of impartiality in the statement. (See Larry P. v. Riles (9th Cir. 1984) 793 F.2d 969, 975-976, 984 [upholding lower court finding of racial bias in standard IQ tests and injunction against the use of such tests in California schools].)
Defendant further contends the trial court erred in permitting Dr. Coleman to testify regarding purely legal questions and to encourage jurors to disregard the law. Having allowed the three defense expert witnesses to testify that defendant was intellectually disabled, he reasons, the trial court effectively resolved the legal questions that (1) intellectual disability is a proper subject of expert opinion (see
As defendant acknowledges, in earlier cases we determined that “Dr. Coleman‘s testimony regarding the unreliability of psychiatric testimony was neither improper nor prejudicial, because he did not suggest that courts should bar psychiatrists from the courtroom. Thus, his criticism of forensic psychiatry and of the opinions of the defense experts went to the weight of those opinions rather than their admissibility.” (People v. Smithey, supra, 20 Cal.4th at p. 966.) We reach the same conclusion here. And, as we also previously concluded, “Moreover, because the trial court instructed the jury that an expert was entitled to state an opinion on a matter at issue in the trial, and that the jury was entitled to disregard an expert opinion if it was unreasonable, we have found such testimony by Dr. Coleman to be ‘clearly nonprejudicial.‘” (Ibid.) Defendant argues, to the contrary, that although in previous cases we have “drawn a line in the sand that Dr. Coleman may have narrowly avoided,” “he finally crossed it in this case.” But we see no significant difference between the testimony we approved in Smithey and other cases and the testimony Dr. Coleman gave in this case. Defendant‘s claim therefore lacks merit.4
Defendant contends the trial court erred in permitting three lay witnesses—teachers and a counselor who taught or worked with defendant in his high school special education program—to testify in the prosecutor‘s case in rebuttal that they did not categorize defendant as intellectually disabled. The court erred, according to defendant, because the question whether a person is intellectually disabled is one for experts and the witnesses were unqualified to give an opinion on the subject. Defendant further contends the trial court erred in overruling his hearsay and foundational objections and allowing a school psychologist and custodian of records to express the opinion, based on school records, that defendant was not intellectually disabled. The asserted errors, he contends, violated not only state law but, because the evidence of intellectual disability that he presented was the “core of his defense” by which he sought to raise a reasonable doubt on the elements of premeditation and deliberation and the witness-killing special-circumstance allegation, also his rights under the
A recitation of the factual background to this claim will help to place it in its legal context. Defendant‘s first expert witness, Dr. Powell, testified that, with a full-scale IQ score of 59, defendant was mildly intellectually disabled. He agreed with the prosecutor that such disability “[would] be noticeable [to] friends and family.” A subsequent expert, Dr. Christensen, likewise testified on cross-examination that “we would expect that family and friends would know [defendant] to be slow, harder to educate, not always quick to acquire new information and not always high functioning in general compared to age peers.”
The prosecution then called three lay witnesses—defendant‘s former school counselor Dolores Rodriguez and former teachers Elizabeth Davis and Susan McClure—and asked them if they ever considered defendant to be intellectually disabled while attending school. Over unsuccessful defense objections that there was no foundation to show that the witnesses were qualified to render an opinion regarding defendant‘s intellectual disability, all three testified they would not categorize him as intellectually disabled.
Davis testified she was a resource specialist in the special education department at Madera High School who worked with students who have learning problems. In that capacity she taught defendant 11th-grade United States history. She observed him to have problems reading and turning in his homework, but did not recall any problems with his reasoning abilities. Davis had worked with intellectually disabled individuals, not in a school setting but as a camp counselor, and—over an unsuccessful defense objection on the ground of foundation—testified she would not categorize defendant as intellectually disabled. On redirect examination, she observed: “He was not a student who put forth a great deal of effort. For instance, in getting homework done and studying a lot I don‘t think he did a whole lot outside of class.”
McClure testified she was a resource specialist in the special education department at Madera High School; defendant was one of her students. She recalled he had difficulties with reading and writing, but, asked whether there was anything “that ever indicated to you that [defendant] may be mentally retarded,” she responded in the negative.
The prosecution also presented the testimony of Leon Potter, a school psychologist and custodian of records for the Madera Unified School District. Over an unsuccessful continuing defense objection on grounds of hearsay and lack of foundation, Potter testified defendant‘s school record showed he was placed in special education “[b]ecause of a learning handicap.” IQ tests administered to defendant in 1975, 1979, and 1982 yielded scores of 70, 75, and 77, respectively. Asked whether, based on these IQ scores, defendant was ever classified as intellectually disabled by the school district, Potter testified that defendant was placed in a class for intellectually disabled students “only on what we call exceptional circumstances, meaning he did not qualify by standard as a mentally retarded child but he‘s functioning in a low borderline range academically, functioning very lowly [sic], was having difficulty in the classroom. When you have circumstances, even though a student does not test
Defendant contends the trial court erred in permitting Rodriguez, Davis and McClure to testify they did not categorize him as intellectually disabled because the determination whether an individual is intellectually disabled is a matter beyond the common experience of laypersons and requires expertise. Lay witnesses, he reasons, can testify regarding their perceptions of an individual‘s behavior, including such matters as test scores, school performance, and a seeming inability to follow instructions, in order to bolster or undermine a claim of intellectual disability, but may not offer their opinions that an individual is or is not intellectually disabled. Here, defendant contends, the lay witnesses properly testified to their observations that defendant had problems with reading and completing assignments but did not seem to have problems with reasoning, but were improperly allowed to testify that in their opinion he was not intellectually disabled.
Defendant‘s contention lacks merit. “[A]ll relevant evidence of mental condition affecting the formation of a specific intent, is admissible on the trial of the ‘not guilty’ plea” (People v. Webb (1956) 143 Cal.App.2d 402, 412 [300 P.2d 130]), including the opinion of lay witnesses, provided the opinion is rationally based on the witness‘s perception and helpful to a clear understanding of his or her testimony (
Nor, contrary to defendant‘s argument, did the prosecutor mischaracterize the lay witnesses’ testimony in his closing argument, or equate it to expert opinion. After critically summarizing certain inconsistencies in the defense experts’ testimony, the prosecutor commented: “On the contrary, the People‘s rebuttal witnesses showed the opposite of what the defense psychologists stated. You heard testimony from two teachers and the defendant‘s counselor who knew him when he was in high school. Two of those individuals had worked with mentally retarded people in the past. And all three of those individuals, although they stated the defendant had learning problems, he had problems with reading and mathematics. It took him a little longer. They did not in any way consider the defendant mentally retarded. [] One of the defendant‘s own expert witnesses said that that would be noticeable.” To the extent defendant is now asserting impropriety in the prosecutor‘s argument, he forfeited the claim by failing to object below (People v. Harris (2013) 57 Cal.4th 804, 852 [161 Cal.Rptr.3d 364, 306 P.3d 1195]), and because the argument accurately reflected the testimony, it would lack merit in any event.
Defendant further contends that, although the school records showing he was enrolled in special education classes for the “educationally mentally retarded” fell within the business or official records exceptions to the rule against hearsay (see
Contrary to the Attorney General‘s argument, we find defendant adequately preserved the contention by his continuing hearsay objection below. Turning
In any event, the school district‘s conclusion, as contained in the records and as described by witness Potter, that defendant was not intellectually disabled was also cumulative to the testimony of witnesses Rodriguez, Davis, and McClure that they did not see anything in the course of their work with defendant to indicate that he was intellectually disabled. We have already determined that testimony was properly admitted to rebut the defense experts’ contrary opinion, in view of the experts’ acknowledgment that intellectual disability would be apparent to persons working with defendant. Accordingly, any possible error in allowing witness Potter to testify, based on the school record, that defendant was placed in classes for educable intellectually disabled students only because of his low academic functioning and not because he was intellectually disabled, was nonprejudicial under any standard.
Defense expert psychologist Dr. Christensen testified on direct examination regarding the mental status examination and intelligence testing she conducted on defendant during October 1989, a month after the crimes. Among other things, Dr. Christensen testified she obtained a full-scale IQ score of 47 for defendant and concluded he was not malingering. She acknowledged having reviewed the reports of two psychiatrists, Drs. Davis and Terrell, who evaluated defendant for purposes of a competency determination and concluded he was malingering.
On cross-examination, Dr. Christensen acknowledged that, in her report based on her October 1989 evaluation, she, in contrast to Drs. Davis and Terrell, had concluded defendant was incompetent to stand trial, and that she still believed he was incompetent at that time. The prosecutor then asked: “And you believe that even though the Superior Court, upon the reports of the psychiatrists, found him to be competent?” The trial court overruled a defense relevancy objection, and Dr. Christensen answered in the affirmative.5 Dr. Christensen also acknowledged her report had recommended that defendant be referred to the Central Valley Regional Center “for placement.” The prosecutor followed up by asking: “And basically, if I understand correctly, you felt that the defendant should be placed back in society and monitored very closely?” Defense counsel interposed a relevancy objection, which the court overruled. Dr. Christensen answered: “It would be a fairly huge assumption for someone to interpret that statement and say I‘m meaning place him back into society. What I was talking about there was the referral process for handling persons of lower intelligence and how they‘re handled differently than persons of normal intelligence, and I was trying to let [defense counsel] at this point know avenues where she could get free services that are already available to Mr. Townsel, and which could assist her in preparing her case.” The prosecutor continued his cross-examination by asking: “I believe you also recommended a limited conservatorship for the defendant; isn‘t that correct?” Dr. Christensen answered in the affirmative. The prosecutor asked: “And that was to focus on controlling social contacts and residence and providing mandatory adult level supervision; is that correct?” Dr. Christensen agreed. The prosecutor then asked: “Doesn‘t that
Defendant now renews his contention that the prosecutor‘s line of cross-examination was irrelevant to any issue in the case, including the reliability of Dr. Christensen‘s opinion defendant was intellectually disabled, or to her overall credibility, contending the trial court erred in overruling the defense objections. Defendant acknowledges that a “wide latitude is permitted in the cross-examination of an expert witness in all matters tending to test his credibility so that the jury may determine the weight to be given the testimony . . . .” (People v. Tallman (1945) 27 Cal.2d 209, 214 [163 P.2d 857]; see
Defendant takes too narrow a view of relevancy in this context. “The scope of cross-examination permitted under [Evidence Code] section 721 is broad, and includes examination aimed at determining whether the expert sufficiently took into account matters arguably inconsistent with the expert‘s conclusion.” (People v. Ledesma (2006) 39 Cal.4th 641, 695 [47 Cal.Rptr.3d 326, 140 P.3d 657].) Here, the prosecutor properly cross-examined Dr. Christensen concerning the discrepancy between her opinion, as
As for the prosecutor‘s question whether Dr. Christensen had recommended defendant be referred to the Central Valley Regional Center, the Attorney General correctly notes that the defense interposed no objection at trial; defendant‘s appellate challenge to the propriety of the question is therefore forfeited. In any event, we see no possible prejudice from either that inquiry or the prosecutor‘s follow-up question regarding what such referral would have meant.
Defendant also contends the trial court erred in overruling defense counsel‘s objections to cross-examination of Dr. Christensen by which the prosecutor assertedly suggested facts of which Christensen had no knowledge and which the prosecutor did not otherwise offer to prove. Specifically, after eliciting from Dr. Christensen she had testified in a previous case that “jail inmates have been passing around information about tests ever since the 1860s,” and had “interviewed at least four people who were charged with murder” in Madera County, the prosecutor asked: “[T]hey were all in jail around the same time; isn‘t that correct?” Defense counsel objected that “around the same time” was vague; the trial court overruled the objection, noting: “She‘s an expert. She can answer if she knows.” Dr. Christensen answered: “I think there‘s some overlap, but I‘m really not sure.” The prosecutor asked: “So is it possible that the defendant could receive information on how to fake tests in the jail; isn‘t that correct?” Defense counsel unsuccessfully objected on the ground that the question called for speculation, and then elaborated: “She is not an expert as to what is transpiring in the jail and would have no way of knowing and assumes foundational facts which she has no knowledge of.” The trial court overruled the objection, telling the witness, “You may answer if you can.” Dr. Christensen responded: “I don‘t know. I don‘t know—see, I don‘t know where he is. I don‘t know enough to know—I know that it has happened in history. I don‘t know how—I don‘t know where he is to know if he‘s had any contact with any of them.” On redirect examination, Dr. Christensen testified she did not leave
Defendant contends the trial court erred in overruling defense counsel‘s objections to the prosecutor‘s questions insinuating defendant had the opportunity to confer with the other defendants Dr. Christensen had evaluated in order to learn how to “fake” psychological tests, when the prosecutor had no basis for a good faith belief Christensen would have any knowledge of the housing practices in the county jail, of whether defendant and the other inmates she had evaluated were ever incarcerated in the same location at the same time, or of whether defendant had any contact with those inmates. Defense counsel, however, did not object on the ground the prosecutor lacked a factual basis for the questions, and defendant has forfeited this contention. (People v. Friend (2009) 47 Cal.4th 1, 81 [97 Cal.Rptr.3d 1, 211 P.3d 520].) In any event, we see no abuse of discretion in the trial court‘s allowing the question and directing the witness to answer “if she can.” Inasmuch as Dr. Christensen acknowledged both that she had evaluated several other clients who were charged with murder and who were in custody around the same time and in the same facility as defendant, and that exchanging information concerning tests was historically common, the prosecutor had a reasonable basis for asking whether it was possible defendant had received information on how to “fake” psychological tests while in jail.
5. Asserted instructional error
a. Introduction
As discussed above, in an effort to show defendant lacked the mental state required for a conviction of the charged offenses, the defense presented the testimony of three psychologists to the effect he is intellectually disabled. Defendant contends the trial court violated state law and deprived him of various federal constitutional protections by erroneously instructing the jury with a modified version of CALJIC No. 3.32 that directed it to consider the intellectual disability evidence on the sole issue of whether he formed the intent to kill, or express malice, as required for the charged murders, and thereby precluded it from considering whether intellectual disability precluded him from premeditating and deliberating the killings and from forming the mental state required for a conviction on the charge of dissuading a witness and a true finding on the witness-killing special-circumstance allegation. The Attorney General contends that defendant invited the error, or forfeited it for purposes of this appeal, by agreeing to the version of CALJIC No. 3.32 that was read to the jury and not requesting appropriate modification; that he was not in any event entitled to the instruction on this record; and that if any error occurred, it was harmless. We conclude the limiting
b. Trial court‘s instructional duty
“In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury‘s understanding of the case.” (People v. Martinez (2010) 47 Cal.4th 911, 953 [105 Cal.Rptr.3d 131, 224 P.3d 877].) That duty extends to instructions on the defendant‘s theory of the case, “including instructions ‘as to defenses ” ‘that the defendant is relying on . . . , or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant‘s theory of the case. “‘” (People v. Abilez (2007) 41 Cal.4th 472, 517 [61 Cal.Rptr.3d 526, 161 P.3d 58], italics omitted; see People v. Anderson (2011) 51 Cal.4th 989, 996 [125 Cal.Rptr.3d 408, 252 P.3d 968].) Evidence of a mental disease or defect, such as intellectual disability, is relevant and admissible to raise a reasonable doubt that the defendant premeditated and deliberated or formed any other specific intent necessary to establish his guilt of the charged offenses (
c. Analysis
Acknowledging that instructions relating mental state evidence to charged offenses are no longer required to be given sua sponte, defendant relies on the principle that once a trial court undertakes to instruct on a legal point, it must do so correctly. (See People v. Castillo (1997) 16 Cal.4th 1009, 1015 [68 Cal.Rptr.2d 648, 945 P.2d 1197].) An instruction not erroneous, deficient, or misleading on its face, he observes, may become so in particular circumstances. (People v. Brown (1988) 45 Cal.3d 1247, 1256 [248 Cal.Rptr. 817, 756 P.2d 204].) Defendant contends the modified version of CALJIC No. 3.32 (5th ed. 1988) given in this case erroneously precluded the jury from considering the evidence of his intellectual disability on the dissuading charge and the witness-killing special-circumstance allegation, and on the
Here, the trial court instructed the jury as follows: “Evidence has been received regarding a mental defect or mental disorder of the defendant, Anthony Townsel at the time of the crime charged in Counts 1 and 2. You may consider such evidence solely for the purpose of determining whether or not the defendant Anthony Townsel actually formed the mental state which is an element of the crime charged in Counts 1 and 2, to wit, murder.”
The clerk‘s transcript reflects the instruction was given at the request of both parties; the trial court commented, and the parties acknowledged, that the instructions given were acceptable to both sides. Although the court observed that many of the instructions had been modified, the record before us does not include a transcript of any instruction conference at which the specific modifications to CALJIC No. 3.32 were discussed, and the clerk‘s transcript informs us neither whether the instruction was given as requested nor whether it was modified. We therefore lack the benefit of any explanation—by trial counsel, the prosecutor, or the court—regarding the drafting of the version of CALJIC No. 3.32 given here.
The Attorney General contends defendant invited any error by agreeing that the instruction should be given as read, and thus forfeited his appellate claim. But the invited error doctrine does not apply here, in the absence of any clear tactical purpose on defense counsel‘s part in agreeing to a version of CALJIC No. 3.32 that omitted reference to the dissuading charge and the witness-killing special-circumstance allegation. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49 [17 Cal.Rptr.3d 710, 96 P.3d 30].) We agree, however, that if defendant wished the court to affirmatively instruct the jury to consider his intellectual disability evidence in connection with the dissuading charge and the witness-killing special-circumstance allegation, it was incumbent upon him to ask, and a claim of error in the failure to so instruct is forfeited for appellate purposes.
Defendant‘s argument, however, is not merely that the instruction, as read to the jury, failed to include the dissuading charge and the witness-killing special-circumstance allegation. He also contends that in directing the jury to consider his intellectual disability evidence solely on the question whether he formed the mental state required for the murder charges, the instruction affirmatively and erroneously precluded the jury from considering the evidence in connection with the dissuading charge and special-circumstance allegation, and on the question whether he premeditated and deliberated the killings as required for a first degree murder conviction. We may review defendant‘s claim of instructional error, even absent objection, to the extent
Because defense expert psychologist Dr. Christensen testified intellectual disability would not prevent someone from forming express malice, defendant reasons the evidence that he did not premeditate and deliberate due to his intellectual disability was not only his primary defense, but his only viable one. Defendant contends it is reasonably likely the jurors understood CALJIC No. 3.32, as given in this case, by which they were told to consider evidence of his mental defect or mental disorder “solely for the purpose of determining whether or not the defendant Anthony Townsel actually formed the mental state which is an element of the crime charged in Counts 1 and 2, to wit, murder,” limited their consideration of the intellectual disability evidence to the sole element of malice aforethought, and thus precluded them from considering it on the question whether he premeditated and deliberated the murders. As such, he contends the instruction violated state law and his
Defendant observes that the jurors were not told on what specific “mental state which is an element” of the murders charged in counts 1 and 2 they were permitted to consider the intellectual disability evidence. Lacking any such specific directive, he contends they would look for guidance to the charging document, which was read to the jury and which accused him of violating
He finds further support for this conclusion in the circumstance that the trial court modified CALJIC No. 8.45, defining involuntary manslaughter, to specifically instruct the jurors that “If you find that the defendant committed an unlawful killing, but due to a mental defect or mental impairment, you find that he was unable to form malice aforethought or an intent to kill, you must find the defendant guilty of involuntary manslaughter,” but did not provide a similar instruction advising the jurors that if they found that defendant committed an unlawful killing with malice aforethought, but that due to a mental defect or mental impairment he was unable to premeditate or deliberate, they had to find him guilty of second degree murder.
Defendant further contends that the prosecutor‘s arguments, rather than correcting the instruction‘s misleading impression the intellectual disability defense could be considered only on the issue of malice, only fortified it by focusing almost exclusively on intent to kill and not premeditation and
The Attorney General contends the jury would have understood CALJIC No. 3.32 to permit it to consider defendant‘s intellectual disability evidence in determining whether he premeditated and deliberated the murders, citing People v. Rogers, supra, 39 Cal.4th at page 880 (Rogers). There, the jury found the defendant guilty of one count of first degree murder and one count of second degree murder and found true a multiple-murder special-circumstance allegation. The jury in Rogers was instructed in the language of CALJIC former No. 3.36, later renumbered CALJIC No. 3.32, that “[e]vidence has been received regarding a mental disease or mental defect or mental disorder of the defendant at the time of the offenses charged in counts one and two and in the lesser included offense of voluntary manslaughter. You may consider such evidence solely for the purpose of determining whether or not the defendant actually formed the mental state which is an element of the crimes charged in the information and the crime of voluntary manslaughter.” (Rogers, supra, at p. 880.) The defendant in Rogers argued the trial court “erred by failing to identify the specific mental state or states—namely premeditation and deliberation—to which defendant‘s mental health evidence was relevant.” (Ibid.) That the use note for the instruction directed the trial judge to “specify the mental state or intent required in each specific count,” the Rogers defendant argued, further supported his claim of error in the failure to do so. (Ibid.)
This court found no merit in the defendant‘s arguments, reasoning “[w]e previously have rejected claims that a trial court erroneously failed to identify premeditation and deliberation as mental states to which evidence of mental disease or defect was relevant, in cases where the trial court either explained that premeditation and deliberation were mental states necessary for a conviction of first degree murder [citations] or instructed that ‘“[t]he mental state required is included in the definition of the crime charged“’ . . . . In the foregoing cases, in light of full instructions defining first degree murder including an explanation of premeditation and deliberation, we concluded ‘a reasonable jury would have understood that the requisite mental states (as set forth in the definitions of the crimes) were the same “mental states” that could be considered in connection with the evidence of defendant‘s mental disease, defect, or disorder.‘” (Rogers, supra, 39 Cal.4th at p. 881, citation omitted.)
Our reasoning in Rogers applies with equal force here. Defendant does not dispute that jurors understood premeditation and deliberation were “mental states.” Contrary to defendant‘s argument, we have no doubt jurors would likewise have understood the “mental state which is an element“—with
Defendant is correct that in directing the jury to consider the evidence of his intellectual disability solely on the question whether he formed the mental state required for the murder charges, the instruction effectively told the jury it must not consider that evidence on any other question before it. We presume the jury followed the instruction. (People v. Homick (2012) 55 Cal.4th 816, 853 [150 Cal.Rptr.3d 1, 289 P.3d 791].) Therefore, if defendant was entitled to have the evidence considered on any other charge or allegation besides the two murder charges, the instruction violated that right.
The Attorney General contends that because defendant was not relying on his alleged intellectual disability in defense of either the dissuading charge or the witness-killing special-circumstance allegation, he was not entitled to an instruction relating the intellectual disability evidence to that charge or allegation, and the version of CALJIC No. 3.32 given here was therefore not erroneous. Citing defense counsel‘s closing argument, the Attorney General contends defendant was relying on “a completely different defense,” namely that his conduct was the result of “jealousy” and “frustration,” and was not an attempt to dissuade Diaz from testifying. We disagree. Although the bulk of defense counsel‘s closing arguments focused on defendant‘s emotional state at the time of the offenses and not his intellectual disability, counsel did argue generally that “Mr. Townsel lacks the mental and intellectual functioning in order to participate in abstract thinking or dealing with consequences and judgment“; and that “if the actions which occurred beforehand were the actions of a normal functioning, intelligent human being, I think that is not the case.” Importantly, the intellectual disability evidence was entirely consistent with, and reinforced, the argument that defendant acted out of jealousy
The Attorney General contends the error did not prejudice defendant, asserting that the intellectual disability evidence was “strongly challenged” through cross-examination and rebuttal testimony. She also observes that the jury rejected the intellectual disability defense in finding defendant guilty of first degree murder, and argues there is no reason to believe it would have accepted the defense in connection with the dissuading charge and the witness-killing special-circumstance allegation. But premeditation and deliberation—the mental state required for first degree murder—differs from that required for the dissuading charge and witness-killing allegation, and the jury‘s rejection of the intellectual disability evidence in finding premeditation and deliberation therefore does not necessarily compel the conclusion that it would have done likewise with respect to the charge and allegation. Specifically, with respect to the dissuading charge, the jury was instructed, as relevant to mental state, that it had to find defendant had “the specific intent to prevent or dissuade a witness or victim from giving testimony at a trial proceeding or inquiry authorized by the law.” With respect to the mental state required for the special circumstance, the jury was instructed it had to find “the witness was intentionally killed for the purpose of preventing her testimony in a criminal proceeding.” These mental states entail knowledge and purpose beyond an intent to kill “formed or arrived at or determined on as a result of careful thought in weighing the considerations for and against the proposed course of action” and “considered beforehand,” and clearly implicate some level of intellectual understanding of the criminal justice system, to which the evidence of intellectual disability was particularly relevant. We cannot say the evidence of intellectual disability that the jury evidently did not view as sufficient to cast doubt on the prosecution‘s evidence of premeditation and deliberation could not have raised a doubt regarding whether, in killing Diaz, defendant acted for the purpose of preventing her testimony in a criminal proceeding. In other words, the Attorney General has not met her burden of showing that the guilty verdict on the dissuading charge and the true finding on the witness-killing special-circumstance allegation were “surely unattributable” to the trial court‘s error in essentially instructing the jury not to consider the intellectual disability evidence in relation to that charge and allegation. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [124 L.Ed.2d 182, 113 S.Ct. 2078]; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].) Defendant‘s conviction on the dissuading charge and the true finding on the witness-killing special-circumstance allegation must therefore be reversed.
B. Penalty phase issues
1. Admission of defendant‘s racist slur
Defendant contends the trial court abused its discretion and violated his rights to a fair trial and a reliable penalty determination under the Eighth and Fourteenth Amendments to the federal Constitution by admitting evidence that he employed a racial slur in communicating a threat to Beatriz Cruz. The contention lacks merit.
The prosecution‘s pretrial notice of evidence to be presented in aggravation pursuant to
On appeal, defendant raises a threefold argument not explicitly presented to the trial court: that admission of the threat against Cruz‘s boyfriend, and in particular the “wetback” slur, “injected otherwise inadmissible and extraordinarily inflammatory evidence suggestive of [defendant‘s] racism against Latinos, a minority group to which the two victims in this case belonged.” Defendant also claims the threat should have been excluded as cumulative of the other threats against Cruz and, considered in light of other asserted trial errors, resulted in cumulative prejudice.
Although defendant cited
In any event, we see no abuse of discretion and no constitutional violation in the trial court‘s ruling. The court could reasonably conclude that the evidence defendant threatened Cruz and her boyfriend was relevant and admissible under
2. Pitchess ruling
Madera County Department of Corrections Officer Frank Reiland testified in aggravation of penalty under
During record-correction proceedings following the entry of judgment in this case, the trial court ordered that Officer Reiland‘s personnel file, as it existed at the time the court examined it on the defense Pitchess motion, be made part of the sealed record on appeal and transmitted to this court. Unfortunately, the order was not complied with, and the record on appeal is
The superior court held hearings pursuant to our order, eventuating in an order stating that the custodian, Madera County Counsel, was unable to produce the records responsive to our order and that the trial judge, the Honorable Paul Martin (retired), was unable, after reviewing his notes from the trial, to recall what records he reviewed in making the Pitchess ruling. The parties do not dispute the records are lost and cannot be reconstructed and have provided further supplemental briefing addressing the impact on this appeal of the Pitchess materials’ absence from the appellate record.
A complete and accurate appellate record is needed to effectuate the rights to meaningful appellate review and the effective assistance of appellate counsel in capital cases. (See, e.g., Dobbs v. Zant (1993) 506 U.S. 357, 358 [122 L.Ed.2d 103, 113 S.Ct. 835];
We have recognized that reversal may be indicated when “‘critical evidence or a substantial part of a [record] is irretrievably lost or destroyed, and there is no alternative way to provide an adequate record so that the appellate court may pass upon the question sought to be raised.‘” ( People v. Galland (2008) 45 Cal.4th 354, 370 [86 Cal.Rptr.3d 841, 197 P.3d 736].) In defendant‘s view, this case presents such a scenario; that is, he contends, the absence of the Pitchess materials from the record deprives him of meaningful appellate review of the trial court‘s Pitchess ruling and dictates reversal of the penalty judgment.
The Attorney General argues, to the contrary, the trial court‘s description of the records in the reporter‘s transcript of the original Pitchess hearing, and the identification in these proceedings of the document released to defendant, provides a record adequate to enable this court to meaningfully review the trial court‘s ruling. Defendant disagrees with the proposition the record is adequate for meaningful review.
We agree with defendant. We find it evident that the record, lacking specification of either the materials the trial court reviewed in ruling on the Pitchess motion or any particularized description of them, is inadequate to permit meaningful appellate review. We simply cannot say, on the record as it stands after exhaustive efforts below to locate the missing materials, whether or not there was additional information in Reiland‘s personnel records that should have been disclosed to the defense.
We must now determine the consequence for this appeal of the inadequacy of the record. The Attorney General contends reversal is unwarranted because defendant fails to show prejudice, that is, a reasonable probability the outcome of the case would have been different had Pitchess-type information about Reiland been disclosed to the defense. She reasons the jury heard abundant aggravating evidence, including the circumstances of the capital offense, which involved defendant‘s commission of two brutal, callous first degree murders after repeatedly threatening victim Diaz in an attempt to dissuade her from pursuing a complaint she had filed against him for abuse. The jury also heard evidence defendant had assaulted Diaz on a previous
We agree with defendant that Watson does not apply here. State law errors in the penalty phase of a capital trial are reviewed not under Watson but under the more stringent Brown standard, which directs us to determine whether there is a reasonable possibility defendant would have received a more favorable result in the absence of the error. ( People v. Brown (1988) 46 Cal.3d 432, 446-448 [250 Cal.Rptr. 604, 758 P.2d 1135] (Brown); see People v. Gonzalez (2006) 38 Cal.4th 932, 961 [44 Cal.Rptr.3d 237, 135 P.3d 649] [“’Brown‘s “reasonable possibility” standard and Chapman‘s “reasonable doubt” test . . . are the same in substance and effect.‘“].)
Applying the Brown standard, we see no reasonable possibility defendant would have received a more favorable result in this proceeding, even assuming an adequate record would have enabled us to conclude the trial court improperly failed to disclose material responsive to defendant‘s Pitchess motion. That is, even assuming defendant had been able to undermine Reiland‘s testimony concerning the June 28, 1990, incident with
In sum, in his closing argument the prosecutor placed his greatest emphasis on the circumstances of the capital crime while placing substantially less emphasis on the
Defendant contends California‘s death penalty statute, as interpreted by this court and applied at his trial, violates the federal Constitution in numerous respects. We have rejected the same arguments in other cases, and decline defendant‘s invitation to reach different conclusions in this one. Thus:
Permitting the jury to consider the circumstances of the crime (
“The United States Supreme Court‘s decisions in Apprendi v. New Jersey [(2000)] 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348], and its progeny, do not establish a Sixth Amendment right to determination of particular aggravating factors, or a finding that aggravation outweighs mitigation beyond a reasonable doubt or by a unanimous jury.” ( People v. Abel (2012) 53 Cal.4th 891, 942 [138 Cal.Rptr.3d 547, 271 P.3d 1040].) Likewise, “neither the cruel and unusual punishment clause of the Eighth Amendment, nor the due process clause of the Fourteenth Amendment, requires a jury to find beyond a reasonable doubt that aggravating circumstances exist or that aggravating circumstances outweigh mitigating circumstances or that death is the appropriate penalty.” ( People v. Blair (2005) 36 Cal.4th 686, 753 [31 Cal.Rptr.3d 485, 115 P.3d 1145].) “There is no constitutional requirement to instruct either on any burden of persuasion regarding the penalty determination, or on any presumption that life without the possibility of parole is the favored or appropriate penalty.” ( People v. Garcia (2011) 52 Cal.4th 706, 764 [129 Cal.Rptr.3d 617, 258 P.3d 751].) There is likewise no requirement jurors be instructed they need not be unanimous in finding mitigating factors, and there is no reasonable likelihood the jury here understood the contrary. ( People v. Moore (2011) 51 Cal.4th 1104, 1139–1140 [127 Cal.Rptr.3d 2, 253 P.3d 1153].) Nor does the Constitution require that the jury be instructed there is no burden of proof ( People v. Houston (2012) 54 Cal.4th 1186, 1232 [144 Cal.Rptr.3d 716, 281 P.3d 799]), or that a verdict of life is required if it determines that the mitigating circumstances outweigh the aggravating ones ( People v. Jones, supra, 57 Cal.4th at p. 980).
The failure to require that the jury make written findings during the penalty phase did not violate defendant‘s rights under the Sixth, Eighth, and
CALJIC No. 8.88 is not defective under the Eighth and Fourteenth Amendments because it instructs the jury to determine whether the death penalty is “warrant[ed],” rather than whether it is “appropriate.” ( People v. McKinzie (2012) 54 Cal.4th 1302, 1361 [144 Cal.Rptr.3d 427, 281 P.3d 412]; People v. Breaux (1991) 1 Cal.4th 281, 316 [3 Cal.Rptr.2d 81, 821 P.2d 585].)
“The inclusion of the phrase ‘so substantial’ in CALJIC No. 8.88,” by which the jurors in this case were instructed they “‘must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole,‘” does not render the instruction unconstitutionally vague. ( People v. Abel, supra, 53 Cal.4th at p. 943.)
By instructing the jurors, in the language of CALJIC No. 8.85, that they could consider as a mitigating factor evidence that in committing the capital crimes defendant was acting under “extreme” mental or emotional disturbance, and rejecting his request that the instruction be modified to delete the adjective “extreme,” the trial court did not violate his constitutional rights. ( People v. Abilez, supra, 41 Cal.4th at p. 534.)
The death penalty law is not constitutionally defective because it does not require that either the trial court or this court undertake a comparison between this and other similar cases regarding the relative proportionality of the sentence imposed. ( People v. Jones, supra, 57 Cal.4th at p. 979.)
The death penalty law does not violate the equal protection clause because persons facing a death sentence lack certain procedural protections, such as written findings and unanimity as to aggravating factors including unadjudicated criminal activity under
The death penalty does not violate international law, the Eighth and Fourteenth Amendments, or “‘evolving standards of decency.‘” ( People v. Virgil (2011) 51 Cal.4th 1210, 1289-1290 [126 Cal.Rptr.3d 465, 253 P.3d 553].)
The conviction for attempting to dissuade a witness from testifying is reversed and the witness-killing special-circumstance finding is vacated. In all other respects, the judgment is affirmed.
Cantil-Sakauye, C. J., Chin, J., Corrigan, J., Liu, J., Cuéllar, J., and Kruger, J., concurred.